327/2005 Coll.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 28. June 2005 in plenary consisting of the President of the
Paul Rychetského and Franz Duchoně, judges, Vojena Güttlera, Paul
Holländera, Ivana Janů, Dagmar Lastovecké, Jiří Mucha, Jan Musil,
Jiří Nykodýma, Miloslava Excellent and Michaela Židlické on the proposal
a group of Senators Senate of the Parliament of the Czech Republic to repeal section 3a
Act No. 117/1995 Coll., on inland navigation, as amended
regulations,
as follows:
The provisions of § 3a of Act No. 117/1995 Coll., on inland navigation, as amended by
amended, is repealed on the date of publication of this finding in the collection
laws.
Justification
(I).
On 5 July 2004. 5. The Constitutional Court has served 18 Senators Senate
Parliament of the Czech Republic (hereinafter referred to as "appellants") on the repeal of section 3a
Act No. 117/1995 Coll., on inland navigation, as amended
Regulations (hereinafter referred to as the "law on inland navigation") for his conflict with the
article. 1 (1). 1 and article. 2 (2). 1 and 3 of the Constitution of the Czech Republic (hereinafter referred to as
"The Constitution"), art. 11, 35 and 36 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"), art. 1 of the additional protocol to the Convention on the protection of human
rights and fundamental freedoms, as well as with the contents of the Convention on the conservation of European
of wild flora, wild fauna and natural
habitats, notified under no 107/2001 Coll., m. s. (hereinafter referred to as "the Berne
the Convention ").
The appellants state that the adoption of this Statute has exceeded the
Parliament of the Czech Republic of its position by the legislature, the provision does not
normative in nature and has no relationship to any other normative part of the Act.
This is a preliminary decision on the interpretation of the future in question
individual things. The fact that Parliament decided that particular waterway
It is in the public interest, apply an indefinite legal concept to the specific
the case, which, however, belongs essentially to the Administrative Department, or subsequently
the Court, and this led to violations of the principle of separation of powers. Parliament is not
entitled to in any way to interfere with the Executive, the contested legal
the provisions of the Parliament removed the right to administrative authorities to decide what is
the public interest and for what reason.
The contested provision has, in the opinion of the appellants also in violation of the
the right to judicial review, as it was impossible for the review in the system
administrative justice, whether the administrative authority properly applied an indefinite
the legal concept of the public interest in the particular situation. This question has already
It was resolved by the legislature, with the general courts review
the decision of the public authorities, from the perspective of legality. The plaintiffs in
the above objections refer to the findings of the Constitutional Court, SP. zn. PL.
TC/1/2000 and SP. zn. PL. ÚS 40/02.
The contradiction of the contested provisions with the Berne Convention fro the appellants in
that part of the development and modernization of the waterway to be build
Water works the Middle Deep and Bangalore and a new ferry degree
Přelouč, where animal species protected by the Convention, which
would be the creation of these works. Endangered animal
the species protected by the Bern Convention, in this case the Otter,
Kingfisher, sea eagle, Osprey, Black Stork, Common Sandpiper,
smew, little Ringed Plover, European Beaver, salmon, modrásek
mud, modrásek've been vaccinated, osmoderma eremita, Fire-bellied toad, Toad
Green, European tree frog, Moor frog, frog, frog
Marsh frog, common frog and lizard.
The contested provision exempts specified water route from the protection of
laid down by the Berne Convention. However, this Convention allows certain
exceptions to the protection of fauna and flora, referred to the exemption between
These permitted exceptions.
The plaintiffs also claim that the parliamentary debate follows that
the aim of the contested edit is to give priority to the construction of the waterway before
proprietary right, and the right to protection of the environment, to bypass the
any refusal exception from protection of the environment and to protect the
the shipowner, the shipowner and the building contractor from those who would like to avoid the attention.
The fundamental right to the environment is significantly higher
level than the closer an undefined public interest. In this context,
the appellants refer to the conclusions of the Constitutional Court, SP. zn. Pl. ÚS
35/93. [A collection of findings and resolutions of the Constitutional Court (hereinafter referred to as "collection
the decision "), volume 1, finding no 7; promulgated under no. 49/1994 Coll.].
On the question of the protection of property rights, the appellants refer to the decision of the
The European Court of human rights in the case of Sporrong and Lonnröth in.
Sweden (1982), in which the Court found that a conflict of public interest
with the protection of property rights must be solved in accordance with the principle of
"fair balance". This balancing is but contested provisions
aPriori excluded and dealt with to the detriment of the ownership rights.
II.
The Constitutional Court pursuant to the provisions of § 69 para. 1 Act No. 182/1993 Coll.
as amended by later regulations (hereinafter referred to as the "law on the Constitutional Court")
asked for comments on the proposal submitted by the Chamber of Deputies and the Senate
Parliament of the Czech Republic, as a party to the proceedings.
The President of the Chamber of deputies of the Parliament of the Czech Republic, PhDr. Lubomír
Fort Worth Star Telegram in its observations on the draft stated that the purpose of the provisions of § 3a
the law on inland navigation was to enable a smoother construction of water
the paths in those sections of the Elbe and the Vltava River, which are crucial for the
business in the field of inland navigation. This adjustment does not interfere with the already
ongoing administrative proceedings, but this only applies to edits in the future,
It also does not interfere with the powers of the Executive, which in each
administrative proceedings shall examine the matter separately with the fact that the process of the administrative
It's up to her discretion. The President of the Chamber of Deputies stated that
the law was approved after the completion of the normotvorném process properly was
signed by the respective constitutional officials, and has been duly declared. For this
the State of affairs the President of the Chamber of Deputies expressed the opinion that the
the legislature acted in the belief that the law is adopted in accordance with the
The Constitution, the constitutional order and our rule of law. However, the Constitutional
the Court, in the context of the examination of the application for annulment of the provision of section 3a
the law on inland navigation, to assess the constitutionality of that provision, and
It has issued the decision.
The then Chairman of the Czech Senate doc. JUDr. Petr
Pithart in its observations on the draft stated that the Senate when discussing
the contested amendment originally proposed the exclusion of Fowles prohibitions
established pursuant to the Act on nature and landscape protection, as he saw
inadmissible interference by the legislative power to the Executive. Therefore, it approved the
the deletion of the part of the proposal, which will then still
The Chamber of Deputies. However, in the case of the contested provisions of the Senate majority-
did not find such a violation of constitutional principles, which should lead to its
disapproval. The contested provision does not decide about the preference of certain
activities before the second, i.e., specifically has no development and modernisation
the waterway before the protection of especially protected territories, but elevates the first of
them on the public interest. In the relevant administrative proceedings, therefore, will be
called upon the competent authorities assess which of these public interest has
priority, and under what conditions. Within the meaning of section 43 of Act No. 114/1992 Coll., on the
nature and landscape protection, as amended, exceptions to the
the prohibitions in the specially protected territories may be granted only if
If another public interest substantially outweighs the interest of nature protection.
However, the question of whether the designation of development and modernisation specifically
defined waterways for the public interest is not in conflict with the principle of the Division of
power. Her answer, however, is the Constitutional Court.
The Constitutional Court further requested pursuant to § 48 para. 2 and § 49 paragraph 1. 1 of the law on
The Constitutional Court representation of the Ministry of transport and Ministry of the
environment.
Transport Minister Ing. Milan Šimonovský in its observations to the submitted
the proposal stated that the public interest in the development and modernization of the waterway
referred to in the contested provisions of the law of international commitments
The United States, specifically from the European Agreement on main inland
waterways of international importance (AGN), notified under no 163/1999
SB. (hereinafter referred to as "AGN"). The contested provision concerns the waterways
of international importance, which is included in the AGN, and is completely General and
the operative, as it affects all cases of development and modernization, to
that can occur on all waterways the United States bent
According to the AGN into the water highway E 20. This provision does not interfere with
the individual decisions of administrative bodies in the field of the protection of nature and the
landscape, for the nature conservancy authorities individually decide when another
public interest outweighing interest in nature and landscape protection (section
56 of Act No. 114/1992 Coll., on nature and landscape protection, as amended by
amended). The provision also does not violate any
the provisions of the Berne Convention nor article. 35 of the Charter, since it concerns only
the determination of public interest in the development and modernization of the waterway. From
for these reasons, the Transport Minister suggested that the Constitutional Court
repeal the provisions of § 3a of the Act on inland navigation.
Environment Minister Libor Ambrozek RNDr. to design delivered by the
pointed out that the contested provision modifies the specific thing, which is in violation of the
with the requirement of the universality of the law. The maintenance of the waterway lies partly in the
Labské pískovce protected landscape area and this is the future of the territory
NATURA 2000, which will be launched according to the criteria of Council Directives 92/43/EEC
and 79/409/EEC. In the opinion of the Minister of the environment cannot be at a flat rate
provide that the development and modernization of the waterway is always the reason for
the granting of exceptions, and such treatment is in violation of the cited guidelines.
In the case of the Berne Convention expressed by the Minister for the environment
doubts as to whether this Convention are among the international agreements within the meaning of
article. 10 of the Constitution, as it has not been ratified by the Parliament of the Czech Republic.
However, it was validly negotiated and the authorities of the United States are
bound to it. Derogation from the obligations set out in the Berne Convention can be enabled only
an individual legal act, and not at a flat rate by law. The Minister
the environment, therefore, expressed with the proposal of the Group of Senators on the
annulment of the contested provisions of the agreement.
III.
The parties were asked to agree to the statement under the provisions of
§ 44 para. 2 of the Act on the Constitutional Court with the abandonment of the oral proceedings,
and note, were alerted to the fact that if in
the specified period does not respond, it will be his consent within the meaning of § 101 paragraph. 4
Code of civil procedure envisaged. The legal representative of the appellants and
the President of the Senate of the Parliament of the Czech Republic with the consent of
the oral proceedings have expressed, the Chamber of deputies of the Czech Parliament
the Republic has sent a request to its observations.
IV.
The Constitutional Court in accordance with the provisions of § 68 para. 2 of the Act on the constitutional
the Court examined whether the Act, whose provisions is assessed in terms of
constitutionality, was accepted and published within the limits of the Constitution laid down the competence and
constitutionally prescribed way.
Of Council publications and těsnopiseckých reports, as well as the observations of the
Parties to the proceedings, the Constitutional Court found that the Chamber of Deputies approved the
the Government draft amendment to the law on inland navigation, including the newly inserted
the provisions of § 3a according to house the press No 343/0 on their 23. a meeting on
12.12. 2003 the necessary majority of votes of members when a quorum of 70
members of Parliament for the adoption of the proposal and voted against the adoption of the proposal 82 25
members of Parliament. The Bill was referred to the Senate, which it discussed the day
21.1. 2004 on its 13. meeting and resolution No. 338 of the returned
the House with amendments (when a quorum of 28 senators voted for
return of the House of representatives proposal 37 senators voted 7
Senators).
The Chamber of Deputies returned the Bill again as the Council discussed
print no. 343/5 and no 343/6 and vote on it at their 27. meeting on 20 April. 2
2004. the quorum for adoption of the proposal 94 members of the Act, as amended by
approved by the Senate voted 140 members and against the acceptance of the proposal 7
members of Parliament. After the amendment to the Act on inland navigation signed
constitutional factors and duly promulgated in the collection of laws on the amount of 39 under
No 118/2004 Coll.; the effectiveness of acquired on the date of the accession treaty
The Czech Republic to the European Union enters into force (i.e., on 1 May 2004).
The amendment to the law on inland navigation so constitutionally was received
in the prescribed manner and within the limits of the Constitution set out competences
compliance with the rules laid down in article 4(1). paragraph 39. 1 and 2 of the Constitution.
The Constitutional Court notes that the proposal meets all the conditions laid down in
the law on the Constitutional Court and nothing prevents its discussion of the Constitutional Chamber
the Court.
In the.
For completeness it should be noted that the contested provision was in the Government
the draft amendment to the Act inserted the amendment contained in the resolution
the Economic Committee of the House of no 155 of its 23. the meeting,
made of 3 October. 12.2003. In the bill approved by the Chamber
the Chamber of Deputies on 12 December 2003. 12.2003 (print no 343/4) sounded the provisions of §
3A as follows:
' section 3a
Development and modernization of the waterway as defined by the Elbe River watercourse
km 129.1 (Pardubice), on the border with the Federal Republic of Germany
and water flow of the Vltava River from RKM 91.5 (score from 19 reviews), including
channel Vraňany-Hořín after the confluence with the Elbe water including výústní
part of the water flow of the Berounka river after the port of Radotín, is in the public interest.
If the waterway is located in the protected area, in particular on the activities of the
related to its development and modernisation of the prohibitions laid down by the
special legal regulation ^ 1a) do not apply.
1A) Act No. 114/1992 Coll., on nature and landscape protection, as amended. "
The amendment, which the Senate approved on 21 February 2006. 1.2004, demanded the
discard in the second sentence of paragraph 3a, including the footnotes.
1A). as already indicated above, the Chamber of deputies of the Senate
the proposal adopted.
The contested provisions, as amended, contains this text:
' section 3a
Development and modernization of the waterway as defined by the Elbe River watercourse
km 129.1 (Pardubice), on the border with the Federal Republic of Germany
and water flow of the Vltava River from RKM 91.5 (score from 19 reviews), including
channel Vraňany-Hořín after the confluence with the Elbe water including výústní
part of the water flow of the Berounka river after the port of Radotín, is in the public interest. "
Vi.
The Constitutional Court considered the proposal to repeal the provisions of § 3a
the law on inland navigation and considers that this proposal is reasonable.
The contested provision is unconstitutional, because it has been violated
the principle of the separation of powers enshrined in the article. 2 (2). 1 of the Constitution. By
Parliament in the Act marked the development and modernisation of specific waterways
for the public interest, to comply with the requirement of universality, the legal act, and
vague legal term applied in a particular case, and to
powers conferred on the Executive.
The Constitutional Court in many of its decisions repeatedly expressed to the request
the generality of legislation. In finding SP. zn. PL 55/2000 (collection
the decision, Volume 22, finding no. 62; promulgated under no. 241/2001 Coll.)
He stated the following:
«To the fundamental principles of the legal state of the material belongs to the maxima
universality of legal regulation (requirement of universality of law, respectively.
the generality of legislation). Universality of the content is an ideal, typical
and the essential character of the law (and the law), and in
relation to the court decisions, Government and acts of the administration. The purpose of the distribution
State power in the legislative, Executive and judicial is entrusting the General
and initial power regulation of State legislation, derived General
power regulation and decisions on individual cases, manage and
exclusively only deciding individual cases, the judiciary. From
referred to the definition of the concept of the definition of the character of the law (or legal
prescription) is then based on the concept of law (law) in the material
the meaning of which differentiate laws (legislation) within the meaning of
the formal. If the laws in the sense of formal legislative acts
authority, that this "enables, where appropriate, approves a particular
measures of executive bodies (the State budget, state contracts, etc.) "
and "the traditional doctrine considers that statutory authority in such
cases be issued-in the form of laws-administrative acts "(f. Weyr,
The Czechoslovak constitutional law, Prague 1937, p. 37), sometimes by legal
provisions within the meaning of the formal (and not the material) are legal
regulations issued by the Government, ministries and other administrative bodies
set out the legal position accurately individualised (marked)
subjects. However in the form of a source of law (law)
its contents are, therefore, the application of the law.»
The arguments for the generality of law the Constitutional Court analysed in
finding SP. zn. PL 12/02 (ECR, volume 29, finding no. 20;
promulgated under no. 83/2003 Coll.), in which mj. said:
«In the subject matter to be but these aspects relate to the assessment of
the law, which regulates the unique case, which therefore differs from
one of the fundamental character of the concept of law, material which is universality.
Recall that the requirement of the universality of the law is an important part of
the principle of the Dominion Act, and also the rule of law. ... Special
the argument against the laws relating to the unique cases, the principle of
the separation of powers, or the odčlenění legislative, Executive and judicial power in the
a democratic legal state of ... Article. I, section 9 of the US Constitution in this
the context provided: "no law shall be issued, containing
He was a court judgment. "»
The provisions of § 3a of the Act on inland navigation provides that the development and
modernization of the specifically defined waterways is in the public interest.
Undoubtedly, therefore, modifies a unique case, and meet him so substantial
the material character legal standards, which is universality. The material is therefore
This is not about the law, but the contested provision is the de facto
an individual legal Act (cf.. In the theory of law., Knapp, Prague, 1995,
p. 149-150). The Constitutional Court to assess whether this fact
establishing the unconstitutionality of the contested provisions.
Since the contested provision was inserted in the draft amendment to the Act
amendment to the proposal in the course of discussion by the
the Chamber of Deputies, there is it explanatory memorandum and its specific purpose and
the target can only be estimated. However, it is clear that the contested provision
tracks to facilitate the development and modernization of the specifically defined waterways.
Demonstrate the public interest it is necessary in the event of expropriation or
the forced restriction of ownership rights under art. 11 (1) 4 of the Charter and on the
the provisions of § 108 connecting them to Act No. 50/1976 Coll., on the territorial
planning and building code (the building Act), as amended
regulations. Having regard to the original text of the contested provision is also
also appropriate to cite the provisions of § 43 of Act No. 114/1992 Coll., on the protection of
nature and landscape, as amended: "exceptions to the prohibition in
specially protected territories according to § 16, § 26, § 29, § 34, § 35 para. 2,
§ 36 odst. 2, § 45 h and 45i in cases where public interest in significantly
outweighs the interest of nature protection permits in each individual
the case of its decision to the Government ".
The contested provisions of § 3a of the Act on inland navigation disqualifies
to the administrative authority in the administrative procedure to detect the public interest in the development of
and modernisation of the waterways in question, since this is already specified by the
by law. Such a solution, IE. declaring the public interest in the particular
specific law, the Constitutional Court shall be deemed to be unconstitutional.
The question of public interest, the Constitutional Court dealt with e.g.. in finding SP. zn.
I. TC 198/95 (ECR, volume 5, finding no. 23), in which mj.
said:
«It cannot be overlooked that not every collective interest can be described as
public interest in the company to preserve the unauthorized construction. In this
the context can be inferred that the concept of "public interest" is to be understood
as such, the interest which could be described as a general or generally
beneficial interest. The question of general interest dealing with eg. F. a. Hayek in
the publication "Law, legislation and liberty", II. piece (released ACADEMIA
Prague, 1991), at page 14. The author states that "often mistakenly suggests
that all collective interests are general interests of the society; However, in the
in many cases it may be satisfying the collective interests of certain groups
with the general interests of the society in complete violation of. The whole history of development
democratic institutions are the history of the struggle for that individual
prevent abuse of government groups in favour of the collective interests of
These groups. " It is therefore necessary, in order to limit ownership rights
only after careful consideration of the basic conditions, whether the restriction is
must be in the public interest.»
The public interest in a particular case is determined during the administrative procedure
based on the measurement of various vested interests, after considering
all the contradictions and comments. Of the reasons for the decision, which the Central
the point is the question of the existence of public interest, then it must clearly indicate
why public interest outweighed by a range of private, vested interests.
The public interest is to be found in the process of deciding on the specific question
(typically, such as expropriation) and cannot be in a particular case, a priori
fix. For these reasons, the public interest in a particular discovery
the event typically the powers of the Executive, not the legislative.
The contested provisions of the Act could not be determined, the reasons for
the legislature acknowledged the development and modernisation of the specifically defined water
the path of the status of public interest whether he found any conflicting interests
and as with their existence. It is clear that these
circumstances or unable to, as the legislative process is not equipped with a
resources for the examination of individual cases with all their
context and consequences.
The relationship between the Executive and legislative powers was dealing with the Constitutional Court in the
finding SP. zn. PL 1/2000 (collection of decisions, volume 18, finding no. 51;
promulgated under no. 107/2000 Coll.), in which he stated:
"This system (note. national committees) has been replaced by the rule of law,
based on the separation of State powers: legislative, Executive and judicial, in which
The Parliament of the United Kingdom, consisting of the Chamber of Deputies and the Senate, has
only the power of legislative, and any executive or the jurisdiction of the
lacks. Only the Executive power to the Chamber of Deputies consists of
prosecute their members to disciplinary punishment options and make decisions to consent to the
their prosecution; Furthermore, the function shall be exercised by nezákonodárné
of options to set up the Inquiry Commission for the investigation of things
public interest and options to interrogate the Government and its members. Do not therefore
The Chamber of Deputies however to the Executive and to the Government to intervene,
with the exception of initiative or recommendation, etc. "
By the contested provision, not only for the intervention of the legislative power to be able to
It was powerful, but limited the right to judicial review. Any
administrative decisions (e.g. on expropriation), made in the context of the
the construction and modernization of the waterway, will
subject to review by the Court in the context of the administrative judiciary, but out of this
the review will be excluded the question of the existence of public interest, as it is
already established by law, which are the general courts pursuant to article 95 para. 1
The Constitution bound. In the absence of the contested provisions, General
the courts may have to examine whether the administrative authorities in the application of fundamental theorems
the legal concept of "public interest" in a particular situation does not exceed the law
set out the limits of administrative discretion (cf. § 78 para. 1 of the code of civil procedure
administrative); This, however, the impugned legislation is de facto excluded.
The question of the exclusion of judicial review in the case of individual legal
Regulation dealt with the Constitutional Court in finding SP. zn. PL. ÚS 40/02 (collection
the decision, volume 30, finding no. 88; promulgated under no. 199/2003 Coll.), in
which mj. said:
"Individual control that is contained in a legal act depriving the addressees of the
the possibility of judicial review of the fulfillment of the General conditions of the operative adjustment
for a particular body, which meets a transparent and acceptable
justification in relation to the regulation of General options, please be
for rozpornou with the principle of the rule of law (article 1 of the Constitution), which is
the immanent power-sharing and judicial protection of rights (article 81, and 90 of the Constitution). ".
Although the judicial review of the contested provision does not completely eliminated, it is
its limitations so serious that the conclusions expressed in the cited award
fully turn out even on the case.
Given the above arguments has the Constitutional Court considered that the contested
the provisions of § 3a of the Act on inland navigation is incompatible with the principles of
the rule of law, in particular with the principle of separation of powers, and is in breach of article. 1,
article. 2 (2). 1 and 3, article. 81 and article. 90 of the Constitution, and also article. 36 of the Charter. From
the perspective outlined constitutional technique, therefore, appears to be an application for revocation
the provisions of § 3a of the Act on inland navigation reason.
Therefore, the Constitutional Court of the provision of section 3a of the Act on inland navigation referred to in §
70 paragraph 1. 1 of the law on the Constitutional Court to annul it.
Having regard to these reasons, which led to the annulment of the contested provisions
the law, the Constitutional Court has already closer to the other in respect of objections did not deal
infringement of the Berne Convention, which contained a proposal.
The present legal ramifications and all the factual circumstances of the case
were sufficiently zřejmy of documentary materials. Since the oral
the negotiations could not be expected further clarification of the matter, the Constitutional Court is
the consent of the participants dropped according to § 44 para. 2 of the Act on the Constitutional Court.
The President of the Constitutional Court:
JUDr. Rychetský in r.